In Depth

The Indiana Supreme Court has suspended for three months a longtime attorney who prepared wills for clients without ever personally
consulting with them.

Issuing an order In the Matter of Paul J. Watts, No. 60S00-0809-DI-510, the justices ruled 4-1 that Spencer-based attorney
Paul J. Watts, who's been practicing since 1974, should be suspended for 120 days starting Jan. 29, 2010. The order was posted
online today and is dated Dec. 22.

The case stems from a previous disciplinary action involving Bloomington attorney David J. Colman, whom the justices suspended
in May 2008 for three years after finding he'd engaged in attorney misconduct on multiple estate planning tasks through the
years. Three justices opted for the suspension, while Chief Justice Randall T. Shepard and Justice Brent Dickson wanted disbarment
because this was his fourth disciplinary proceeding since being admitted in 1970. That decision came with the order, Matter
of Colman, 885 N.E.2d 1238 (Ind. 2008).

In Watts' case, Colman had consulted with G.A. - a 95-year-old man who lived alone and was hospitalized with a broken hip
- in 2004 about his need for a will, and Colman contacted Watts to prepare the will. G.A. was concerned about the state ending
up with his assets upon his death, and he agreed to name Colman as his sole primary beneficiary with Colman's son as a contingent
beneficiary.

Colman met and discussed the issues with G.A. privately and Watts never met with G.A. or discussed the will with him, though
one of Watts' paralegals did contact the man's physician and caseworker and communicated with Colman. The paralegal also went
over the final will with G.A.

A week after the will's execution, Colman filed a petition that he be named as guardian over G.A.'s estate because of what
he said was the man's mental incapacitation. He obtained that guardianship role, though the elderly man eventually obtained
new counsel and challenged the guardianship and ultimately drafted a new will that left $650,000 to Indiana University's Hilltop
Garden and Nature Center, where G.A. had worked as a yardman.

In this disciplinary case, Watts maintained throughout the proceedings that he'd done nothing wrong in failing to communicate
with G.A. about the will, instead trusting Colman to communicate on his behalf and delegating to a paralegal any duty to explore
G.A.'s competence or wishes about the will. Watts said until this disciplinary issue arose, it was his standard practice to
draft wills for elderly, bedfast clients without consulting them and relying instead on information provided by family members
in order to minimize legal fees for the clients.

The Disciplinary Commission filed the action against Watts in September 2008, and former Vigo Superior Judge Barbara Brugnaux
was named as the hearing officer in this case. Earlier this year, she determined that Watts committed misconduct and recommended
that he be suspended. The justices agreed, finding that he violated three Indiana Professional Conduct Rules: 1.4(b) on failure
to explain matter to the extent reasonably necessary to permit a client to make informed decisions; 1.7 that involves attorneys
representing clients when the representation would be materially limited by attorney's responsibilities to a third person
or by a personal interest of the lawyer; and 8.4(a) that prohibits knowingly assisting another to violate the lawyer disciplinary
rules, particularly the one prohibiting the preparation of an instrument for a non-relative giving the lawyer or person related
to the lawyer a substantial gift.

"Respondent's unwavering argument that he can ethically represent a client without communicating with the client displays
a troubling lack of insight into his duty of undivided loyalty to the client," the court wrote. "If fees are a concern, the
lawyer's options are to reduce the fees or decline the employment, not conduct it in breach of duty. Irreparable harm may
well result if the client dies with a will that does not reflect his or her wishes. The need for independent advice is particularly
acute if the client is vulnerable due to age or disability. A desire to minimize a client's legal fees cannot take precedence
over the obligation to provide the independent legal counsel for which the fees are paid."

Justices pointed out that despite Watts' "lack of insight" into his misconduct, he no longer uses the no-contact practice
with clients that put this case into motion. For that reason, a majority decided that the 120-day suspension is sufficient
to give Watts "the opportunity to reflect on his misconduct, reassess his duties to his clients, and take any further corrective
action" before being automatically reinstated to practice law.

Justice Frank Sullivan dissented on the discipline, believing it to be insufficient.

Responding to news about the court's disciplinary decision, Watts told Indiana Lawyer today that he regretted that this had
happened but wanted to avoid saying much about the ruling itself. He said this is the first disciplinary action against him
in 36 years of practicing.

"If there's a lesson to be learned here for the benefit of the bar, it's that you must talk directly to the person for whom
you're drafting the will... you can't take it from anyone else," he said. "I thought I'd covered it. Obviously, I was wrong.
I'm sorry that I was wrong and I certainly didn't mean to discredit the profession. What else do you say?"

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.